Satyamoorthy A/L Sundramoorthy v Pendakwa Raya (B-05(SH)-368-07/2024)

(A) INTRODUCTION [1] The appellant was charged with an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (‘the Act’ and/or ‘the DDA’ are used interchangeably in this judgement), punishable under section 39B (2) of the Act, as follows: 30 09/02/2026 10:05:11 Kand. 41 "Bahawa kamu pada 30.11.2020,jam lebih kurang 3:45 petang, bertempat di tempat pam angin Stesen Minyak Petronas Damansara Damai, Jalan PJU 10/1, Damansara Damai, Petaling Jaya, dalam Daerah Petaling, dalam Negeri Selangor Darul Ehsan, telah mengedar dadah berbahaya iaitu 16.9 gram campuran Heroin dan Monoacetylmorphines (14.3 gram Heroin dan 35 2.6 gram Monoacetylmorphines), dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama." [2] The appellant claimed trial, and at the conclusion of it, the High Court, 40 on 23.07.2024, found him guilty, convicted him, and sentenced him to life imprisonment of thirty (30) years from the date of arrest (30 November 2020) and 12 strokes of rotan. Aggrieved with the decision of the High Court, the appellant filed this appeal against the said conviction and sentence. 45 [3] We duly considered the appeal on 09.10.2025 and unanimously allowed it in part:

On the totality of the materials before us, it is our considered finding that this is not a case for trafficking but one of possession.

In the circumstances, we are reducing the charge of section 50 39B(1)(a) DDA to that of possession under section 39A (2) of the DDA.

The appellant is sentenced to 10 years’ imprisonment from the date of arrest with 10 strokes of rotan. Our reasons are as follows:

(B) THE SALIENT FACTS [4] The salient facts of the case had been meticulously set out by the learned Judicial Commissioner (‘JC’) in her ground of judgment (‘grounds’), and we have, by and large, jointly adopted her findings of fact with necessary 60 modifications. The prosecution called six (6) witnesses, and the pertinent facts according to the prosecution’s narrative are as follows:

4.1 On 30.11.2020:

At approximately 1.30 p.m., Inspector Darwis Bin Aripin (‘PW2’) from the Criminal Investigation Narcotics Division, Police 65 Headquarters at Petaling Jaya, Selangor (‘IPD PJ’), received intelligence regarding suspected drug activity.

The suspect was described as an Indian man riding a Yamaha motorcycle.

The alleged drug transaction was reported to have taken place at 70 Petronas Petrol Station at Damansara Damai, Petaling Jaya, Selangor (‘the petrol station’).

4.2 In response to the intelligence received:

PW2 held a brief meeting with eleven other officers from the 75 Narcotics Division at around 2.30 p.m. that same day. During this meeting, three separate teams were assigned to the petrol station.

By approximately 3.45 p.m., PW2 and two of these teams arrived at the petrol station and began surveillance from two different vantage points, one in the car park and the other at the side of the 80 petrol station.

Meanwhile, the third team was positioned along Jalan PJU 10/1D, heading towards Sekolah Agama Rakyat.

4.3 Approximately fifteen minutes later:

PW2 observed the accused arriving alone on a motorcycle with the registration number VCG 5971.

The accused stopped in front of the air pump kiosk situated at the side of the petrol station, turned off the engine, got off the motorcycle, and crouched down to inflate the rear tyre.

As the accused remained crouched, PW2 and PW5 (Kpl 142290 Hafrizan bin Jilin) approached him.

PW2 identified himself as a police officer, at which point the accused appeared visibly anxious.

A search of the accused’s person was carried out, but nothing 95 incriminating was discovered.

Subsequently, PW2 searched the motorcycle and located a red plastic bag bearing the words "Terima Kasih Thank You" (exhibit P5A) in the carrier basket.

On inspection, this bag contained a transparent plastic packet 100 (exhibit P5B) suspected to be heroin, with an approximate gross weight of 460 grams.

PW2 then seized both exhibits P5A and P5B, arrested the accused, and proceeded with his team to the Narcotics Division at IPD PJ. 105 110

4.4 Upon returning to IPD PJ:

PW2 continued to interrogate the accused. During this process, PW2 stated that the accused revealed another person, Thanabalan, was also engaged in drug delivery operations.

PW2 subsequently instructed the accused to get in touch with 115 Thanabalan to ascertain if there were any additional drug-related activities.

Later that same day, at approximately at 5.30 p.m., following the accused’s contact with Thanabalan, PW2 and a raiding team led by ASP Shukri bin Ahmad, IPD PJ (not called as a witness), 120 proceeded to Block E, PPR Flat, Seri Semarak, Jalan Air Panas, Setapak, Kuala Lumpur (‘PPR’).

The accused accompanied the team to help identify Thanabalan, and around 7.00 p.m., Thanabalan was apprehended at the PPR flat.

A search was conducted, but no incriminating items were discovered on him. Both the accused and Thanabalan were then taken back to IPD PJ.

4.5 PW2 (Insp Darwis bin Aripin):

Prepared a search list of the items seized from the accused (exhibit P12).

Several police reports were lodged at Sri Damansara (exhibit P9), at Wangsa Maju (exhibit P10) and Sri Damansara (exhibit P11).

The items seized were then handed over to PW6 (Inspector Nurul 135 Hadi bin Harun Manser (‘IO’) on 01.12.2020 at about 1.30 a.m. (exhibit P13).

4.6 On 01.12.2020:

At approximately 2:58 p.m., PW6 handed exhibits P5A and P5B to the chemist, PW1, at the Chemistry Department in Petaling Jaya 140 for analysis.

PW1 confirmed that the substance in exhibit P5B comprised 14.3 grams of heroin and 2.6 grams of monoacetylmorphine, which formed the subject matter of the charge.

Both heroin and monoacetylmorphine are classified as dangerous 145 drugs under the First Schedule of the Act, and the chemist’s report is marked as exhibit P3.

At the end of the prosecution’s case and after a maximum evaluation of the evidence presented, the prosecution had 155 succeeded in establishing actual possession of the drug by the accused.

By operation of the law, the presumption of trafficking under section 37(da) of the DDA applies against the accused. 160 After the three alternatives were explained to the appellant, he elected to give sworn evidence.

(C) FINDINGS AT THE END OF THE PROSECUTION’S CASE [5] At the end of the prosecution's case, the learned JC found that the 150 prosecution had established a prima facie case for the said charge and called upon the appellant to enter a defence. For ease of reference, we have summarised the learned JC’s observation as follows:

(D) THE APPELLANT’S DEFENCE [6] The appellant argued that:

6.1 On the day of his arrest, i.e. 30.11.2020:

He had just knocked off from work as a lorry driver at Pudu Ria Florist at Jalan Chan Sow Lin, Kuala Lumpur ("the workplace").

He was about to head home when he received a telephone call from Thanabalan, a man whom he had known for about two to three months prior to the arrest:

Thanabalan had frequented a shop where he had his breakfast.

This shop was also near the workplace.

Despite meeting him daily, he did not inquire about Thanabalan's occupation.

6.2 In the supposed phone call:

Thanabalan had asked him to wait at the workplace as he (Thanabalan) had something important to tell him.

He obliged, and after 15 minutes of waiting, Thanabalan arrived 180 at the workplace on his maroon-coloured Scooter Ego, which Thanabalan parked next to the motorcycle.

Thanabalan then exchanged greetings with him.

Thereafter, Thanabalan asked him to help deliver exhibit P5A (red colour plastic bag) and its contents to his (Thanabalan) 185 friend at the Petronas station.

When he asked about exhibit P5A, he was supposedly told by Thanabalan that it contained Indian ginseng, a type of medicine for the sick.

He was hesitant to help Thanabalan at first, but was persuaded 190 by Thanabalan, who offered to pay him RM50.00 for his help.

After much persuasion and begging from Thanabalan, he finally agreed to help with the delivery, as the RM50.00 offered would also come in handy.

Thanabalan then took exhibit P5A and its contents from his 195 (Thanabalan) scooter carrier basket and placed it in the motorcycle carrier basket.

He saw that exhibit P5A and its contents were nicely wrapped up and appeared box-shaped.

However, he was unable to see the contents through the red- 200 coloured plastic bag (exhibit P5A). He also did not open exhibit P5A to see its contents.

He then proceeded to the Petronas petrol station.

6.3 After his arrival there:

He supposedly telephoned Thanabalan to say that he had reached the Petronas petrol station:

Thanabalan then told him to wait at the entrance of the Petronas petrol station so that the recipient could see him.

For purposes of identification, Thanabalan had told the 210 recipient the make, colour and licence plate of the motorcycle and that he was carrying a blue colour school bag.

While waiting for the recipient, he noticed that the rear tyre of the motorcycle appeared rather deflated:

He then rode the motorcycle to the air pump kiosk at the side of the Petronas petrol station, stopped the running engine, alighted from the motorcycle, squatted down and proceeded to inflate the rear tyre of the motorcycle.

During doing so, he was approached by PW2 and PW5. 220 PW5 handcuffed him while he was still in a squatting position.

He denied that he appeared panicky when PW2 identified himself as a police officer.

Instead, he was curious about why he had been arrested and 225 handcuffed.

So, he asked PW5 for the reason when PW5 told him to sit still and be quiet.

6.4 He then saw PW2 search the motorcycle:

PW2 took the exhibit P5A from the motorcycle carrier basket and inspected it.

He was then arrested and brought back to IPD PJ in a yellow-coloured Perodua Axia.

While on the way to IPD PJ, he asked PW2 the reason for his 235 arrest, where PW2 told him that he had carried drugs and showed him the contents of the red plastic bag (exhibit P5A).

At that moment, Thanabalan called him on his handphone:

He told PW2 that the caller Thanabalan was the one who gave him the red plastic bag (exhibit P5A). 240

PW2 then told him not to disclose his arrest to Thanabalan.

Thus, he told Thanabalan that he was still waiting for the supposed recipient at the Petronas petrol station.

6.5 At IPD PJ:

He allegedly received ten lashes on the soles of his feet by a 245 high-ranking police officer who demanded more information on drugs,

The accused denied any knowledge and replied only that he had been given a package by Thanabalan.

He saw PW2 and his men discussing the impending arrest of 250 Thanabalan:

He was then instructed by PW2 to call Thanabalan to cancel the delivery appointment with the excuse that he felt tired after waiting for so long for the recipient at the Petronas petrol station.

After hearing this, Thanabalan then asked him to return the exhibit P5A to him.

6.6 PW2 then gathered his team of men to arrest Thanabalan:

While on the way out of IPD PJ, PW2 instructed him to call 260 Thanabalan to meet at his (the accused's) place of residence at the PPR flat.

Thanabalan agreed to the request.

Thereafter, he was brought by PW2 and his men to the PPR flat where he saw Thanabalan waiting for him at the entrance on his 265 maroon colour Scooter Ego.

He was then instructed by PW2 to make a telephone call to Thanabalan for verification purposes for PW2 and his men to arrest Thanabalan.

Following the arrest of Thanabalan, both he and Thanabalan 270 were then brought back to IPD PJ.

While in the police lock-up at IPD PJ, he met Thanabalan and questioned him on his lies, where Thanabalan promised him that he would admit to the ownership of the drugs in court. 275

(E) FINDINGS AT THE CLOSE OF THE DEFENCE CASE [7] At the close of the defence case, the learned JC found as follows: “Therefore, looking at the evidence in totality, this court finds the accused to be unworthy of credit and his evidence nothing more but bare denials, recent inventions and an afterthought. The accused did not offer any explanation whatsoever, which 280 could cast any reasonable doubt as to his knowledge of the drugs, thus rebutting the presumption. The accused could not therefore exculpate himself from his involvement in the trafficking of the drugs by saying that he had no knowledge that exhibit P5A contained drugs. On the contrary, by being guilty of wilful blindness, the accused was clearly in 285 possession of the drugs. Accordingly, with the element of mens rea possession firmly established, the accused had also failed to rebut on the balance of probabilities the presumption of trafficking under s.37(da) of the Act. The prosecution has therefore succeeded in proving the offence of trafficking under s.39B(1)(a) of the Act against the accused beyond a reasonable doubt. The accused is hereby convicted of the offence 290 as charged.” Consequently, the appellant was found guilty, convicted, and sentenced to life imprisonment (30 years) and 12 strokes of the rotan. 295

(F) THE APPEALS [8] Counsel for the appellant argued for appellate intervention, postulating that there were clear and convincing reasons to disagree with the High Court’s findings, citing in support.

Dato Seri Anwar Ibrahim v PP & Another Appeal [2004] 3 300 CLJ 737, where it was observed that: “Clearly, an appellate court does not and should not put the brake and not go any further the moment it sees that the trial judge says that it is his finding of facts. It should go further and examine the evidence and circumstances under which the finding was made to see whether, to 305 borrow the words of HT Ong (CJ Malaya) in Herchun Singh’s case (supra) “there are substantial and compelling reasons for disagreeing with the finding. “Otherwise, no judgment would ever be reversed on the question of fact and the provision of s. 87 CJA 1964 that an appeal may lie not only on a question of law but also on a question of mixed fact and law would be 310 meaningless.”

Magendran Mohan v PP [2011] 1 CLJ 805, where it was observed: “[40] Normally, the appellate court does not interfere with the concurrent findings of fact of the courts below, in the absence of very special 315 circumstances. But where the courts below ignore, overlook or commit errors of law apparent on the face of the record which result in serious and substantial miscarriage of justice to the accused, it is the duty of the appellate court to step in and correct the legally erroneous decision of the courts below.” 320 [9] The appellant grounded his challenge on fifteen (15) grounds of appeal, but the learned counsel, in his oral submission, stated that he would confine himself to the main grounds of appeal, which we summarised as follows:

The JC misdirected herself in finding the appellant's confession as the main basis for his knowledge, custody, and control of the drugs.

(ii) The JC wrongly found Thanabalan as not a material witness and should have invoked s.114 of the Evidence Act.

(iii) The JC erred in absolving Thanabalan from liability using hearsay evidence from PW6.

(iv) The learned JC should have focused on whether the appellant had momentary possession or was a mere carrier without knowledge. 335

The learned JC erred in facts and law when she failed to indicate whether the appellant had rebutted the presumption under section 37(da) of the DDA.

(vi) Alternatively, the learned JC erred in facts and law when she failed to make a finding that the appellant had only passive 340 possession of the drugs, where no element of distribution had been proven. It is our unanimous position that the issues above are interrelated and would therefore be addressed simultaneously as follows:

(G) ANALYSIS AND FINDINGS BY THE COURT OF APPEAL Issues number (i), (ii), (iii) and (iv)

The learned JC misdirected herself in finding the appellant's confession as the main basis for his 350 knowledge, custody, and control of the drugs.

(ii) The learned JC wrongly found Thanabalan as not a material witness and should have invoked s.114 of the Evidence Act.

(iii) The learned JC erred in absolving Thanabalan from liability 355 using hearsay evidence from PW6.

(iv) The learned JC should have focused on whether the appellant had momentary possession or was a mere carrier without knowledge. 360 [10] The learned counsel has submitted at length on the above issues and submitted that the learned JC has erred in law and fact by failing to conduct the following (briefly):

The learned JC was erroneous when making findings based on confessions brought by prosecution witnesses. Even if the evidence 365 was given by PW6, there was a challenge posed by the appellant during cross-examination.

However, the learned JC chose to emphasise the guilt or existence of the appellant's knowledge by referring to the testimony of the prosecution’s witnesses, namely PW2 and PW6, who stated that the 370 appellant had informed them that Thanabalan was also involved in the delivery of drugs like the appellant.

For the evidence to be accepted by the court, it must first be proven that the evidence was evidence given by the appellant after the caution were read out because it was clear that the evidence was a 375 confession. However, this is not the case, citing the Court of Appeal in Ho Tze Kean V. PP & Another Appeal [2018] 2 MLJ 721, which had rejected the evidence given by the arresting officer who did not give the accused cautions when the statement was made, even though the arrest had already been made: 380 "[18] We deal with the first and second issue raised by learned counsel together as the two were interrelated. On the issue of arrest, learned counsel argued that the learned trial judge erred in making a finding that there was no arrest made by the police and that PW7 was merely making an inquiry towards the accused in which it was alleged that 385 the accused made a statement saying there was syabu. Learned counsel submitted that the alleged statement made by the accused should not have been admitted and considered by the learned trial judge as it was made after his arrest and before any caution was administered. 390 [19] We agree with the learned counsel. We are of the considered opinion that there is merit in the learned counsel's complaint. As we alluded to earlier, the learned trial judge relied on the answer given by the accused that "Ada syabu di dalam plastik krim di sebelah kerusi bahagian penumpang" as the sole basis for the learned trial judge to 395 form his finding that the accused had the prerequisite knowledge. The learned trial judge also relied on direct evidence to fasten the element of knowledge and possession of the impugned drugs against the accused." 400 [11] The learned JC, in her findings, also stated that Thanabalan had refuted the allegation that he handed over the parcel to the appellant, stating that Ravi had handed it over to the appellant. Indeed, this evidence was brought by the prosecution witness, PW6, who was the IO, and the learned JC used this hearsay fact to show that the appellant's defence was 405 not true. [12] The learned counsel argued that PW6's evidence was obviously hearsay and that Thanabalan had to be called. However, because Thanabalan was not produced as a witness for the prosecution, nor was 410 he, offered to the defence, it clearly prejudiced the appellant. [13] It is argued that there are various cases that have held that neither confession nor hearsay evidence can be used by the Court in making a finding to convict the appellant, which clearly prejudices him, citing the 415 Court of Appeal in Vigneswaran Rajamanikam v. PP & Another Appeal [2018] 9 CLJ 730, which observed: "[32] On the facts of the present case, we agreed that there is not an iota of evidence to show that the appellants were occupiers of the house. The HCJ relied solely on the evidence of the investigating officer (PW6) in 420 holding that the appellants were the occupiers of the house and therefore had custody and control of the house, hence the drugs. PW6's investigation referred to the statements recorded from Murithi and the neighbours. However, Murithi was not called as a witness, and his s. CPC statement was not produced by the prosecution. The prosecution 425 could have also called the neighbours but did not do so. PW6's evidence was a bald statement with nothing to support. It was hearsay and clearly inadmissible..." [14] The appellant's defence asserted that:

He was only an innocent carrier, having no knowledge of what the contents of the package were.

The package handed to the appellant was sealed, and its contents were not visible to the naked eye.

The appellant asked Thanabalan about what was inside the 435 bag, and he was informed that it was Indian ginseng.

An investigation could be conducted on the appellant's mobile phone to determine whether there was any communication with the buyer, which might indicate that the appellant was carrying out drug business activities, but this was not done.

In fact, the appellant was unable to cross-examine Thanabalan, a key witness, because Thanabalan was also arrested after the appellant identified him as the person who handed over the parcel. 445 [15] The learned counsel argued:

That the evidence in question (regarding Thanabalan) was obtained while the appellant was being brought to the IPD, where the interrogation (soal siasat) was conducted by PW2.

During this process, admission was obtained, which amounts to 450 a confession.

Subsequently, Thanabalan was located.

This is where it was suggested that the learned JC’s finding of fact was erroneous.

It was posited that it was based on confession evidence that was 455 not subjected to the necessary legal scrutiny, whether caution was administered and whether the statement was made voluntarily and whether section 24 of the Evidence Act applies. [16] It was further asserted that the learned JC had based her finding of 460 possession on the appellant's confession, thereby occasioning a substantial miscarriage of justice:

Nowhere in the grounds of judgment did the learned JC deliberate on the appellant's confession, i.e., admission.

The learned JC merely went on to say that the drugs were near 465 the accused, and he had knowledge.

The learned counsel submitted that proximity alone is clearly not enough. There is a plethora of cases that show that proximity alone, without any other evidence, is not enough. The evidence must be read holistically, and these are the other cross- 470 examinations that the learned JC has failed to show that the appellant did not agree to admitting it. [17] The learned Respondent (‘DPP’) submitted:

That Thanabalan is not a material witness.

The prosecution had tried to produce the s.112 (Criminal Procedure Code (‘CPC’)) statement of Thanabalan, but this was strenuously objected to by the appellant's counsel at the lower court, and therefore it was not tendered.

The learned JC had made a finding:

On the custody and control when the accused was riding his motorcycle towards the air pump kiosk, situated at the side of the Petronas petrol station:

In the front carrier basket of the motorcycle was a red-coloured plastic bag. 485

(ii) When opened, it revealed a transparent plastic bag, later confirmed to contain dangerous drugs.

(iii) The front carrier basket of the motorcycle was in front of the accused and between his legs.

(iv) When he rode the motorcycle, there was nothing else 490 in the carrier basket, save and except exhibit P5A and its contents.

As such, the accused/appellant had every and all ample opportunity to check the exhibit P5A and its contents.

(vi) The motorcycle was registered under the accused's/appellant’s name.

(vii) There is no direct evidence to prove the element of knowledge. It is well-established law that knowledge, being a state of mind, can be proven only by 500 surrounding facts, a person's acts or omissions, and inferences.

The learned DPP admitted that it is true that the learned JC has taken the confession or the admission by the accused person to PW2 and PW5. However, the learned JC has 505 taken a holistic approach in determining that the appellant's defence failed. [18] The learned DPP further argued that:

It defies logic and common sense for the appellant to have been 510 the conduit to deliver the plastic bag when he knew practically nothing about Thanabalan, and since Thanabalan had his own vehicle.

The issue was never explored by the appellant as to why Thanabalan, who had his own mode of transport, could not have 515 been made by Thanabalan in the delivery of the supposed Indian ginseng by the shop to the intended recipient.

The appellant conceded under cross-examination that he could open the plastic bag right away to view its contents without cutting it with scissors or untying it.

The appellant should have been alarmed when he was instructed by Thanabalan not to open the plastic bag, and he had all the reasons to be suspicious of the contents of the plastic bag since he did not know Thanabalan.

The appellant did not bother to open and check/inspect the 525 plastic bag after receiving it until he was arrested by the enforcement authority and chose to be wilfully blind. The learned DPP cited in support the Court of Appeal in Hoh Bon Tong v PP [2010] MLJU 2184, which observed that the defence of innocent carrier must necessarily involve the concept of wilful 530 blindness. The Federal Court was also cited in PP v Herlina Purnama Sari [2016] MLJU 1824, where it was observed: “[45] The concept of ‘wilful blindness’ had been discussed in a number of local cases, but it seems to have had its genesis in the dissenting judgment of Yong Pung How CJ (Singapore) in the case of Public 535 Prosecutor v Hla Win [1995] 2 SLR 424. The doctrine of ‘wilful blindness’ can be summarised as applicable to a situation where the circumstances are such as to raise suspicion sufficient for a reasonable person to be put on inquiry as to the legitimacy of a particular transaction. To put it another way, if the circumstances are 540 such as to arouse suspicion, then it is incumbent on a person to make the necessary inquiries in order to satisfy himself as to the genuineness of what was informed to him. Should he fail to embark upon this course of action, then he will be guilty of ‘wilful blindness’. In other words, he is then taken to know the true situation. He then 545 cannot be said to have either rebutted the presumption of knowledge or have raised a reasonable doubt as to his knowledge of the situation.” In the foregoing circumstances, the learned DPP submitted that the 550 learned JC had not erred in her findings that the appellant was wilfully blind and was taken to have knowledge of the presence of the impugned drugs inside the red plastic bag. [19] In considering the foregoing arguments by the learned DPP, we 555 acknowledged that:

The learned DPP conceded that the learned JC did rely on the confession by the appellant by referring to the testimonies of the prosecution witnesses, PW2 and PW6, who had stated that the appellant had informed them that Thanabalan was also involved 560 in the delivery of drugs.

There is no doubt that it is a trite law that for such evidence to be accepted by the court, it must first be proven that the evidence was given after due caution had been administered. However, this is not the case. The Federal Court in Francis 565 Antonysamy v PP [2005] 3 MLJ 389 made it clear that any statement or confession made after the arrest was made, but before any warning is given to the accused, such confession or testimony will be inadmissible evidence and said: "[12] It must be observed that the need to administer the caution as 570 required by s113(1)(a)(ii) is an explicit endorsement and preservation of the privilege against self-incrimination as it gives the accused the option to remain silent. It is perhaps to ensure that this privilege is not diluted in anyway that's 113(1)(a)(ii) provides that a statement made by a person after his arrest shall not be admissible in evidence' unless 575 the court is satisfied that a caution was administered to him in the following words or words to the like effect..." it can therefore be seen that the satisfaction of the court on the administration of the caution goes to the very root of the admissibility of a statement that had been made. What requires consideration is whether a mere reading of the 580 caution will amount to the court being 'satisfied' that it had been administered...." [20] We find that the learned JC has used the evidence of the appellant given to PW2 as stated in para [128-129] of her ground of judgment, as follows (we refer to RR L.8 PDF pg. 42): 585 “[128] See also page 41 of Notes of Evidence-S Maka Tuan ada juga terima maklumat Thanabalan juga ada terlibat penglibatan dadah betul? J Benar Yang Arif daripada hasil pertanyaan daripada OKT. (penekanan ditambah) 590 [129] The word “juga" when translated to the English Language meant "also". Thus, the usage of "juga" denoted that, similar to the accused, Thanabalan was also involved in drug-related activities.” [21] We find the learned JC at para [130] proceeded with her findings and 595 said as follows: “[130] As such, the unchallenged evidence of PW2 and PW5 on Thanabalan not only established that the accused was well aware Thanabalan was involved in the conveyance of drugs, i.e. a drug trafficker, but also amounted to an admission that the accused too was involved in the same activity.” 600 Concerning this foregoing issue, we observed as follows:

When the learned JC determined that the unchallenged evidence of PW2 and PW5 not only established that the accused understood Thanabalan was involved in the 605 conveyance of the drugs, i.e. a drug trafficker, but also amounted to an admission that the accused was also involved in the same activity, such evidence should have been approached with caution.

The clear Federal Court position in Francis Antonysamy v PP 610 (supra), that a statement made by the appellant after his arrest shall not be admissible in ‘evidence' unless this court is satisfied that a caution was administered to him, which was affirmed by the prosecution witnesses that they were not sure.

In such circumstances, we unanimously hold that the said 615 “admission” that Thanabalan was also a drug trafficker amounted to an admission that the accused was also involved in drug trafficking is inadmissible evidence. [22] On the invocation of the presumption of adverse inference under 620 section 114(g) of the Evidence Act 1950:

The learned DPP submitted that the learned JC had not erred when she did not draw an adverse inference against the prosecution for the non-calling of Thanabalan as the prosecution witness:

Efforts were made to locate Thanabalan before the start of the trial, however, they were unsuccessful.

The prosecution had conducted a search with the Immigration Department and had placed advertisements in the local newspapers (Kosmos and Berita Harian) and the 630 Royal Malaysia Police’s Facebook page to secure the attendance of Thanabalan at the court.

However, this did not yield any positive results.

In fact, the prosecution had made an application to the learned 635 JC to adduce the section 112 statement of Thanabalan during the trial. However, the prosecution had faced strenuous objections from the appellant.. [23] It was further pointed out by the learned DPP that the appellant 640 contended that the drugs belonged to Thanabalan. Nevertheless, this is immaterial to a charge under section 39B(1)(a) of the DDA:

It is trite law that the Court is not concerned with ownership.

The non-calling of Thanabalan as a prosecution witness did not render a gap in the prosecution’s case nor result in a material 645 deficiency in the face of overwhelming evidence before this Court.

For a successful invocation of presumption under section 114(g) of the Evidence Act 1950, the appellant must be able to prove to this court that there has been withholding or suppression of 650 material evidence by the prosecution.

There is not an iota of evidence to this effect that has been led by the appellant during the trial, nor at this stage.

There was no suppression or withholding of evidence (Thanabalan) by the prosecution. 655 Accordingly, there is no merit in the argument canvassed by the Appellant that the learned JC ought to have invoked the adverse presumption under section 114(g) of the Evidence Act 1950. [24] We are of the opinion that:

In determining whether the presumption of adverse inference under s.114(g) of the Evidence Act 1950 applies in the present case, and will always be subject to the discretion of the Court, based on a thorough examination of the entire facts of the case.

An adverse inference (under that illustration) can only be drawn 665 if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence.

It may be drawn from withholding not just any document but a material document by a party in his possession, or for non-production of not just any witness but an important and material 670 one to the case. (see Munusamy Vengadasalam v. PP [1987] 1 CLJ 250; [1987] CLJ (Rep) 221; [1986] 1 MLRA 292 SC). [25] It must be noted that this is a case where PW2 was acting on the tip- 675 off and the tip-off given to PW2 mentioned no name or age, or even the motorcycle number:

The appellant, in his defence, stated that Thanabalan gave him the package to be given to someone. When asked, Thanabalan said the package contained Indian ginseng.

We agree with the submission of the learned counsel that this shows that the appellant's defence revolves around the fact that he did not know the contents of the package as drugs, and this was stated early during the prosecution case.

Therefore, there is no issue of the defence as a recent invention 685 or an afterthought or bare denial as stated by learned JC at para [117-120] of her judgment as follows: “[117] Instead, throughout the prosecution case, the defence only repeatedly challenged that Thanabalan and not the accused was the target in the information received by the PW2 (arresting officer); 690 that Thanabalan had given exhibit P5A to the accused to be delivered to someone and that Thanabalan was the real trafficker. [118] The arguments on Thanabalan being the real trafficker and the suspected target in the information received have already been dealt with earlier on. 695 [119] Thus, looking at the evidence in totality, the accused could not therefore exculpate himself from his involvement in the trafficking of the seized drugs by saying that he had no knowledge that exhibit P5A contained drugs or that he was an 'innocent carrier' in this transaction, for he thought it contained Indian ginseng. 700 [120] This defence of innocent carrier, namely the absence of specific knowledge of the contents, was carefully considered in PP v Abdul Rahman bin Akif [2007] 5 MLJ 1, where the Federal Court per Arifin Zakaria FCJ, as he then was, wholly agreed with the following judgment of Lord Morris in Warner v Metropolitan Police 705 Commissioner [1968] 2 All ER 356: …. [121] Based on the abovesaid findings, this court dismisses the defence of an "innocent carrier" as a bare denial, a recent invention and/or afterthought.” 710 [26] We find the appellant's defence is not a bare denial, as the defence brought by the appellant supports that the contents of the package cannot be seen with the naked eye, as confirmed by PW2 in his evidence, refer RR L.8 PDF 45-46, as follows: “S : Yang plastik lutsinar, dalam plastik merah itu boleh nampak ke tidak 715 kandungan apa yang ada dalam itu. Cuba demostrasi Tuan Darwis. J: Saksi membuat demostrasi dan menunjukkan kepada Mahkamah* S : Saya katakan pada Tuan plastik lutsinar yang ada dalam plastik merah itu, IO tidak nampak apa kandungan dari luar, betul atau tidak? J : Benar Yang Arif, tidak berapa nampak sebab colour plastik warna gelap.” 720 [27] According to PW6, based on the appellant's information, Thanabalan was arrested. We agree with the submission of the learned counsel that it is not possible that Thanabalan was investigated under the 725 same investigation paper when the evidence of PW2 and PW5 stated that Thanabalan was arrested after the appellant informed the police that Thanabalan was carrying out drug delivery activities just like the appellant. [28] We find that the failure to call Thanabalan as a prosecution witness 730 has created a "gap" in the prosecution's case. It is the responsibility of the prosecution to close this gap, and it is not the duty of the defence to do it. The learned counsel refers to Mohan Singh a/I Lachman Singh v PP [2002] 3 MLJ 291, where the Court of Appeal held: “The burden of proving its case at every stage lies on the prosecution. The only 735 task of the accused is to raise a reasonable doubt as to the truth of the prosecution's case. If there are gaps in the case for the prosecution, these cannot be filled by resorting to a purported failure on the part of the 5th defence to put specific questions relevant to its case. Such gaps must be filled by the prosecution itself. That has always been the law. It is still the law." 740 [29] We refer to Ghasem Hazouri Hassan v. PP [2018] 6 CLJ 133; 6 MLJ 231, where the Federal Court observed as follows: “[48] The law pertaining to s. 114(g) of the Evidence Act 1950 is settled. Under s. 114(g) of the Evidence Act 1950, the court may presume that evidence 745 which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The usage of the word ‘may’ gives the discretion to the court whether or not to invoke the adverse inference to a given set of facts; it is not a mandatory inference. To draw an adverse inference against the prosecution the court must be satisfied that the 750 witness that was not offered was a material witness, the prosecution purposely withhold evidence which it possessed and which was always available: and that what the prosecution did was done with an ulterior motive to frustrate the defence (Nanda Kumar Kunyikanan & Anor v. Pendakwa Raya [2011] 8 CLJ 406; [2011] MLJU 1566). 755 [49] The aforesaid authority above set out is the correct position of the law, that is, court will not invoke an adverse inference against prosecution if it believes that the facts and/or the prosecution’s reasons for not calling the supposed material witnesses show no cause for it. Moreover, the prosecution only needs to produce witnesses who are necessary in the 760 unfolding of its complete narrative, that is, to prove the essential elements of the crime and in this case, custody, control, and knowledge...” [30] Applying the foregoing principle, we are of the opinion that Thanabalan is a material witness who should be called or offered to the 765 defence, which was not done here and therefore, to our mind, the adverse inference under s.114(g) EA applies. The appellant’s defence was that the package in question was given by an individual named Thanabalan, and that the contents could not be seen from the outside. Thanabalan told the appellant that the package contained Indian ginseng, not drugs, and that 770 it was to be delivered to a recipient at the Petronas Damansara Damai petrol station. This defence was raised during the prosecution’s case and consistently pointed to Thanabalan as the source of the package. Therefore, the appellant’s defence was not a recent invention, afterthought, or mere denial. The appellant has informed the arresting 775 officers that the package was given by Thanabalan for delivery to someone else. This was evident from the challenges made to the prosecution witnesses, especially SP2, and was also supported by the fact that Thanabalan was arrested and investigated under the same investigation file, according to SP6 (IO). For this reason, to our mind 780 Thanabalan should have been called as a prosecution witness. The failure by the prosecution to call Thanabalan as a prosecution witness or offer to the defence has created a ‘gap’ in the prosecution case and it is the prosecution’s responsibility to close this gap, not the defence. We refer Mohan Singh a/I Lachman Singh v PP [2002] 3 MLJ 291, the Court of 785 Appeal held as follows: 'The burden of proving its case at every stage lies on the prosecution. The only task of the accused is to raise a reasonable doubt as to the truth of the prosecution's case. If there are gaps in the case for the prosecution, these cannot be filled by resorting to a purported failure on the part of the 790 5 defence to put specific questions relevant to its case. Such gaps must be filled by the prosecution itself. That has always been the law. It is still the law." Issues number (v) and (vi)

The learned JC erred in facts and law when she failed to indicate whether appellant had rebutted the presumption under section 37(da) of the DDA 1952

(vi) Alternatively, the learned JC erred in facts and law when she failed to make a finding that the appellant had only passive 800 possession of the drugs, where no element of distribution had been proven. [31] The learned counsel submitted that:

Nowhere in the findings was it stated whether the appellant had rebutted the presumption under Section 37(da) DDA.

It is the appellant's defence that he was only an innocent carrier and did not know the contents of the package. The said sealed package (exhibit P5A) received by the appellant was in a condition that could not be seen with the naked eye. The appellant also asked Thanabalan what it contained, and he was 810 informed that it was Indian Ginseng medicine.

The appellant also did not have the opportunity to cross-examine Thanabalan, who was an important witness, when Thanabalan was also arrested, as the appellant informed that Thanabalan was the person who gave the parcel.

An investigation can also be carried out on the appellant's mobile phone to identify if the appellant has communicated with the buyer to show that the appellant is carrying out drug business activities, but this is not done. In support, the learned counsel cited the Federal Court in Alcontara 820 Ambross Anthony v PP [1996] 1 LNS 597, where it was observed: "Nowhere in his judgment did the Judge direct attention to the statutory presumptions as to possession (s. 37(d)) and trafficking (s. 37(da)), and as a result, he made no finding as to whether the defence had rebutted the same. In our view, this was a misdirection in law by way of non-direction having regard 825 to the following passage in the judgment of Azmi SCJ so in Mohammad Radhi bin Yaakob v. PP [2002] 3 CLJ 794(1991] 3 MLJ 169, at p. 172 para 1: In our opinion, unless the evidence in a particular case does not obviously so warrant, it is incumbent for the Court to consider whether, on the balance of probabilities, the evidence of the defence has rebutted the statutory 830 presumption of trafficking under s. 37(da) as a separate exercise, even though the Court is satisfied on balance that the presumption of possession under s. 37(d) has not been rebutted. In this case, the failure to do so was a material misdirection and was fatal to the conviction. Having said that, we would add there may well be cases where, because of the 835 absolutely overwhelming nature of the affirmative evidence led by the prosecution, there is no need for resort to be had to the statutory presumptions aforesaid, but even in such a case, we consider that the trial Court should specifically so find." 840 The Court of Appeal in Victor Chidiebere Nzomiwu & 2 Ors v PP [2012] 1 LNS 806 COA was also cited in observing that: "This is our unanimous decision. We have perused through the evidence with a fine-tooth comb, and we have also considered the written grounds of judgment of the learned High Court Judge as well as the submissions of the parties, and 845 we find that there is evidence of possession of the dangerous drugs by all three appellants pursuant to a common intention. The charge in this case was that, pursuant to a common intention, the three appellants were trafficking in the dangerous drugs, and the learned High Court Judge found them guilty of the offence of trafficking, having applied the presumption under s. 37(da)(iiia) of the 850 DDA 1952. However, we find that when the learned High Court Judge came to consider the defence case, His Lordship misdirected himself when he failed to consider at all the question of whether the first, second and third appellants had rebutted the presumption of trafficking under s. 37(da)(iiia) of the DDA 1952 on the balance of probabilities (PP v. Yuvaraj [1969] 2 MLJ 89, PC). In the 855 circumstances, we are of the considered view that it is unsafe to convict all three appellants for the offence of trafficking in dangerous drugs as per the charge. But we are satisfied, and we hold that on the available evidence, there is clear evidence of possession of the dangerous drugs in question pursuant to a common intention of them all. Consequently, we quash the convictions and 860 sentences under s. 39B(1)(a) of the DDA 1952 and punishable under s. 39B(2) of the DDA 1952 read with s. 34 of the Penal Code, and we substitute it with a conviction of each of the appellants under section 12(2) of the DDA 1952, and punishable under s. 39A(2) of the DDA read with s. 34 of the Penal Code." Also cited was the Court of Appeal in Bahram Nikkhouyabgram Nayeb 865 v PP [2013] 6 CLJ 702, which observed: '[27] The appellant is not required to prove his innocence beyond a reasonable doubt. All that is required of him is to raise a reasonable doubt. It is incumbent on the learned judge to consider whether, on the balance of probabilities, the evidence of the defence had rebutted the statutory 870 presumption under s. 37(da) of the Act. We have perused the grounds of judgment, and it is apparent that the trial judge has failed to carry out a separate exercise to consider whether the appellant had succeeded on the balance of probabilities to rebut the statutory presumption. We agree with learned counsel that the learned judge has failed to consider evidence 875 from which inferences favourable to the appellant could have been made, which, on a balance of probabilities, would have succeeded in rebutting the said presumption. In our view, such omission has occasioned a miscarriage of justice. We find that it was not safe to sustain the conviction. For the reasons stated above, we allowed the appeal and set aside the 880 conviction and sentence." In the premises, the learned counsel concluded that the conviction under s.39B DDA is clearly unsafe, and, alternatively, argued that the charge should be reduced to that of possession. 885 [32] The learned DPP disagreed, arguing that the learned JC had clearly stated that the accused had failed to rebut, on the balance of probabilities, the presumption of trafficking under s.37(da) DDA when the learned JC said as follows:

“…Accordingly, with the element of mens rea possession firmly 890 established, the accused had also failed to rebut on the balance of probabilities the presumption of trafficking under s.37(da) of the Act. The prosecution has therefore succeeded in proving the offence of trafficking under s.39B(1)(a) of the Act against the accused beyond reasonable doubt. The accused is hereby convicted of the offence as charged.” 895

“On the contrary, by being guilty of wilful blindness, the accused was clearly in possession of the drugs. Accordingly, with the element of mens rea possession firmly established, the accused had also failed to rebut on the balance of probabilities the presumption of trafficking under section 37(da) of the Act. In addition, thereto, the accused did not offer any 900 explanation whatsoever which goes towards rebutting the said presumption. That presumption therefore stands.” [33] Considering the evidential materials in their totality, we agree with the submission of the learned counsel that:

Nowhere in the findings was it stated whether the appellant had succeeded in rebutting the presumption under Section 37(da) DDA.

Nowhere in her judgment did the learned JC direct attention to the statutory presumptions as to possession (section 37(d)) and 910 trafficking (section 37(da)), and, as a result, she made no finding as to whether the defence had rebutted them. In our view, this was a misdirection in law by way of non-direction having regard to Mohammad Radhi bin Yaakob v. PP [2002] 3 CLJ 794(1991] 3 MLJ 169.

(H) CONCLUSION [34] Our considered view:

Except in cases where the evidence clearly does not require it, the Court must separately consider whether, on the balance of 920 probabilities, the defence has successfully rebutted the statutory presumption of trafficking under s.37(da), even if the presumption of possession under s.37(d) remains unrebutted.

The appellant’s main argument is that he was merely an innocent carrier and was unaware of the package’s contents. 925 The package (exhibit P5A) given to the appellant was sealed, and its contents were not visible. The appellant also asked Thanabalan about the contents and was told it was Indian Ginseng medicine.

Furthermore, the appellant did not have the chance to cross- 930 examine Thanabalan, who was a key witness, because Thanabalan was also arrested after the appellant identified him as the person who handed over the parcel. The appellant’s mobile phone could have been investigated to determine if there was any communication with the buyer that might indicate 935 involvement in drug transactions, but this was not done. [35] Upon our review of the evidence:

We note that the appellant was found with exhibit P5A in the carrier of his motorcycle, positioned between his legs. After considering the evidence, the learned JC had determined that the appellant had possession of exhibit P5A.

Based on this, we conclude that the circumstances do not 945 support a charge of trafficking, but rather of possession.

Accordingly, we substitute the original charge under section 39B(1)(a) of the DDA with a charge of possession under section 39A(2) of the same Act. The appellant is therefore sentenced to ten years’ (10) imprisonment from 950 the date of arrest, along with ten strokes of the rotan. 6 February 2026 Hayatul Akmal Abdul Aziz 955 Judge Court of Appeal Counsels: 960 For the Appellant: Afifuddin Ahmad Hafifi together with Aina Melina Binti Johan Ariff Lim Messrs Salehuddin Saidin & Associates For the respondent: Shamala A/P Jaganathan 965 Deputy Public Prosecutor Attorney General’s Chamber